MK Family Law

The UK Supreme Court heard oral argument this week in the case of G v. G, on the complex issue of a child's asylum claim and a parent's request to return that child using the Hague Abduction Convention to the country that the child is trying to escape.  You can find the case details here .  The questions presented to the Supreme Court were:  1) Does a child named as a dependent on a parent's asylum application have any protection from refoulement?  2) Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement? 3) Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum? The Court of Appeals for England and Wales concluded that the High Court was not barred from determining the Father's application for the return of his child under the Hague Abduction Convention, nor was the court barred from making an order to return the child. ...

The Hague Conference's (HCCH) Council on General Affairs and Policy (the organization's governing body) holds an annual meeting, typically in March, to set forth an agenda for the organization's work over the coming year.  The meeting is attended by representatives of Member States.  Prior to each year's Council meeting, the Permanent Bureau (PB) staff prepare a variety of useful documents related to the organization's work .  There are a variety of family law topics on the Council agenda for the March 2021 (tentative) meeting.  Included among those topics is planning for the organization's next Special Commission meeting on the 1980 Child Abduction and 1996 Child Protection Conventions.  Special Commission meetings are scheduled once every (approximately) five years and serve as a meeting for Members and relevant international organizations to discuss the practical operation of a specific treaty.  The 1980 and 1996 Conventions are routinely packaged togeth...

In Avendano v. Balza , the First Circuit affirmed the U.S. District Court's refusal to return G, a minor child, to Venezuela on the basis that G was mature, and objected to the return.  The Petitioner Mother appeals the court's finding on two points. Point one : Petitioner argues the court wrongly concluded the child was mature The trial judge did not commit clear error when concluding that the child was mature.  The trial judge had examined a variety of witnesses who had observed the minor child's demeanor, heard testimony from the child's Guardian Ad Litem , and had even interviewed the minor child personally in the GAL's office before concluding that the child's desires were "very clear, consistent, and rational" and that he not only stated a preference for the United States, but clearly objected to being returned to Venezuela.  The Court rejected the Petitioner's argument that the Court should have examined the child's maturity at the time ...

On January 8, 2021, the U.S. District Court for the Western District of Virginia denied a return petition brought under the Hague Abduction Convention in the case of Alfonso VH v. Christina AZ  on the basis that the minor child is now settled in the United States. The court found that the Petitioner Father established a prima facie case of wrongful retention after the child's Respondent Mother refused to return their child to Honduras as scheduled on April 23, 2019 (at the end of a planned 2-week trip).  The Respondent argued three exceptions to the child's return: (1) the child was now "well" settled, (2) the child's "wishes," and (3) a grave risk.  The minor child was appointed a Guardian Ad Litem , who filed a report with the court, which included statements made by the child, and which both parents agreed the court could accept in lieu of the child's testimony.  The Petitioner did not file his return petition with the court in Virginia until app...

The Court of Appeals of Texas, Houston affirmed the trial court in Cortez v. Cortez on December 29, 2020, which found that Texas no longer had continuing, exclusive jurisdiction to modify its custody order. Mr. and Ms. Cortez are parents to two sons, both born in Texas, but who moved to Mexico a few months after their father filed for divorce and custody in Texas in 2012.  The 2013 custody order made the parents joint managing conservators and ordered Ms. Cortez to return with the children to Texas by August 1, 2014.  The custody order confirmed that the children's home state was Texas (Mr. Cortez commenced the child-custody proceedings two months prior to Ms. Cortez relocating the children to Mexico). Apparently, Ms. Cortez failed to return the children to Texas in August 2014.  In August 2015, Mr. Cortez filed a motion to modify the custodial arrangement in Texas, arguing Texas had exclusive, continuing jurisdiction pursuant to the UCCJEA.  Ms. Cortez sought to di...

In the case of  Pawananun v. Pettit , the U.S. District Court returned the parties' two daughters to their habitual residence of Thailand.  The parties stipulated that the father, Mr. Pettit, had wrongfully removed the parties' children from Thailand.  Mr. Pettit focused on arguing that it would present a grave risk of harm to the children to return them to Thailand because of certain claims of abuse of his daughters that he believed were inflicted by a family friend that may have been having an affair with his ex-Wife. The family friend, Mr. Hardy, was a doctor who had moved to Thailand from the United States.  Mr. Hardy had been investigated in the U.S. after allegedly sexually assaulting patients and staff.  He surrendered his U.S. medical license.  Upon learning of this, Mr. Pettit began surreptitiously investigating Mr. Hardy and his involvement with his daughters by taking the children to a series of doctors without advising their mother of the s...

The U.S. District Court for the Western District of Washington denied Mr. Colchester's request that the court immediately return his daughter to him in Spain pursuant to the Hague Abduction Convention.  The case came before the court after Ms. Lazaro, the child's mother, removed the case from the state family court.  Mr. Colchester requested the federal court promptly return his daughter, and argued that the court need not take evidence to do so.  The court disagreed.  While the court has discretion to determine its procedures for resolving the petition, and courts have resolved Hague Abduction return petitions merely on the papers (see Pope v. Lunday ), in this case, Mr. Colchester has not yet met his burden of proof to establish a prima facie case that his daughter was wrongfully removed from her habitual residence.  Citing to the February 25, 2020 opinion of Monasky v. Taglieri , the court acknowledged that habitual residence is a fact-bound determination, ...

Mr. Jack Stone is back in court, this time in a state court in Florida, seeking the return of his minor children from Japan .   Mr. Stone was previously before the U.S. District Court for the District of Columbia seeking a U.S. passport for his child, without the child's mother's consent, and seeking the return of his child using the Hague Abduction Convention.  The federal court denied Mr. Stone's request .  In the Florida state court, Mr. Stone again requests that his child be returned using the Hague Abduction Convention, and argues that his child custody case should not have been dismissed.   The Florida state court confirmed the same position as the U.S. District Court with regard to the Hague Abduction return petition - it must be filed in Japan, the location where his children now sit.  Pursuant to our U.S. implementing legislation, the International Child Abduction Remedies Act, Mr. Stone must proceed in the location where the child is located ...

The Middle District of Tennessee examined the issue of habitual residence in a "retention" case under the 1980 Hague Abduction Convention in Rodriguez v. Fernandez .  In this case, the court weeded through inconsistent testimony taken by remote technology through interpreters and messages that were translated in real time by the witnesses from Spanish to English.  It concluded that the parents of a young child, AM, who were living in Mexico, agreed to move as a family to Tennessee with their child in late 2018.  The mother and child moved in October to spend some time with the maternal grandmother.  The father was to join in December 2018 after work obligations, but, before he could relocate, the mother alerted him that she no longer wished to cohabit.  The record became more confusing when different witnesses and evidence debated when the father actually concluded that the mother and child's time in Tennessee was intended to be a permanent relocation without hi...

Ms. Cha (South Korean) married Mr. Kim (American) and had a child in 2014.  In April 2016, Ms. Cha left their home in Guam with the child for South Korea.  Mr. Kim filed for divorce in Guam 3 months later, and in September 2016, Ms. Cha filed for divorce in South Korea. Mr. Kim also filed a request to return the minor child to Guam using the Hague Abduction Convention.  The South Korean court rejected his request saying that both Guam and South Korea were the child's habitual residence and Mr. Kim had, at least in part, consented to the child's prior and current time in South Korea. His appeals were denied.   This case revolves around Mr. Kim's attempts to serve Ms. Cha with his Guam divorce papers using the Hague Service Convention .  He apparently made several attempts using the South Korean Central Authority, and he received a certificate of non-service from their office.  Mr. Kim then attempted to serve Ms. Cha by sending her the legal documents by...

My law firm will be offering a free webinar on January 13th at noon ET, where I will provide a summary of the most important international family law updates of 2020.  You can learn more about it, and register by clicking here .

A father, Gyorgy Matrai , sued his California family court judge in the U.S. District Court for the ND California for ordering a bond of $5 million before Mr. Matrai could see his son.  Mr. Matrai argues that the bond violates his, and his son's, substantive due process rights under the 14th Amendment of the U.S. Constitution.  He asks, as relief, that his family court judge, Joni Hiramoto, be enjoined from imposing any such bond requirement on him in the state family court proceedings.  Judge Hiramoto files to dismiss, and the court ordered Mr. Matrai to show cause why the Court should not dismiss the action under the Younger doctrine.  Younger abstention is appropriate in civil cases “when the state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement actions or involve a state's interest in enforcing the orders and judgments of its courts, (3) implicate an important state interest, and (4) allow litigants to raise federal challenges." If those “thresho...